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  1. #26
    mystery1's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    I forgot you posted that.

    There are a few points in here you may wish to use sammiefields2512def.rtf

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  2. #27
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Many thanks.

    The thing is, I've said no contract was created. They haven't mentioned the signs and neither have I. They've mentioned a breach of the terms but not given any more details.

    How could such detail as to the layout of the signs etc be introduced into a defence if nobody has yet explicitly acknowledged they exist?

    Many thanks
    F

  3. #28
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    Default Re: Parking Control Management UK Gladstones Court Claim

    What i would do is add something along the lines of


    As the claimant has not disclosed any information in their claim i will introduce the following defence points which may or may not apply :-

    etc

    This is technically incorrect but covers for when a judge appears who will give a claimant a lot of latitude.

    M1
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    I can only help with what you tell me. Post up information (other than names and addresses!).

    I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

    Upload images to your thread like this .Email [email protected] if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

    If you want to tell someone YOU were driving, go to confession.

    I,I,I,I,I,I should be avoided unless you are Jim Diamond.

  4. #29
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Ah I see. Will do. So essentially these extra points of defence are to prevent a judge deciding in PCM's favour prior to the actual hearing?

    Many thanks
    F

  5. #30
    mystery1's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    It's about stopping a travesty such as http://legalbeagles.info/forums/show...396#post694396

    M1
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    I can only help with what you tell me. Post up information (other than names and addresses!).

    I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

    Upload images to your thread like this .Email [email protected] if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

    If you want to tell someone YOU were driving, go to confession.

    I,I,I,I,I,I should be avoided unless you are Jim Diamond.

  6. #31
    Fruitbat's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    Ah I see - I will work on this over the weekend so that I can submit by Sunday night.

    If this ever happens again I will certainly be sure to deal with things at the POPLA stage!

    Many thanks
    F

  7. #32
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Hi M1,

    I would be grateful for your opinion on the attached.

    Many thanks
    F
    Attached Files Attached Files

  8. #33
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Argh. Have just gone to check the online system and it only allows 122 lines. Will need to cut down.

    F

  9. #34
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Ok no worries - all trimmed and submitted!

    I guess they have 28 days to respond now...

    BW
    F

  10. #35
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Should've emailed it and kept it whole.

    M1
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    Please note i am now pretty much without access/time to help 5 days a week. Others will hopefully help you.


    I can only help with what you tell me. Post up information (other than names and addresses!).

    I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

    Upload images to your thread like this .Email [email protected] if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

    If you want to tell someone YOU were driving, go to confession.

    I,I,I,I,I,I should be avoided unless you are Jim Diamond.

  11. #36
    Fruitbat's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    To be honest I didn't know when precisely the deadline on 13th was so just wanted to avoid all doubt.

    Also there was nowhere on the MCOL system that allowed me to say I was sending the defence separately so didn't think it could be done.

    Anyway, what would happen if I were to apply for summary judgement now? Would they also have ano extra chance to add additional particulars or submit evidence or would judgement be made based on both of our statements as they stand?

    Many thanks
    F

  12. #37
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Anyway, what would happen if I were to apply for summary judgement now? Would they also have ano extra chance to add additional particulars or submit evidence or would judgement be made based on both of our statements as they stand?
    The same as before. You make an application and it would be heard. The other side always have an opportunity to amend things although the later they leave it, the less likely it is the court will accept it and it'll cost them an application fee to do so.

    M1
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    Private messages are off as all help on this site is on board.

    Please note i am now pretty much without access/time to help 5 days a week. Others will hopefully help you.


    I can only help with what you tell me. Post up information (other than names and addresses!).

    I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

    Upload images to your thread like this .Email [email protected] if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

    If you want to tell someone YOU were driving, go to confession.

    I,I,I,I,I,I should be avoided unless you are Jim Diamond.

  13. #38
    Fruitbat's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    Hi M1,

    Have received an email from Gladstones informing me of PCM's intention to proceed with the claim and requesting a special direction for a papers only hearing on the basis that the case is relatively straightforward (standard response it seems). They also say that if I reject their request for a papers only hearing then they'd like the case transferred to their local court.

    Should I now wait for the court to send to me a Directions Questionnaire to fill in?

    I will obviously be objecting to a papers only hearing but in respect of choice of court, should my argument be that I'm a LIP and the Claimant is a company?

    Also, should I be sending copies of everything I file with the court to Gladstones from now on?

    Many thanks
    F

  14. #39
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Yes, yes and yes.

    Obviously as they've had their DQ yours should follow soon. If not ask the court if it has been sent.

    M1
    ********************************Signature********* ************************

    Private messages are off as all help on this site is on board.

    Please note i am now pretty much without access/time to help 5 days a week. Others will hopefully help you.


    I can only help with what you tell me. Post up information (other than names and addresses!).

    I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

    Upload images to your thread like this .Email [email protected] if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

    If you want to tell someone YOU were driving, go to confession.

    I,I,I,I,I,I should be avoided unless you are Jim Diamond.

  15. #40
    Fruitbat's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    Hi M1,

    I've had my DQ now so will send this off.

    Just had a few quick questions please:
    1) Should I be preparing a skeleton argument at this stage?
    2) Is there any sort of Defence in court against a claim that the contract might have been accepted on the basis of displaying a parking permit? (Obviously that particular claim has not been made because the particulars just vaguely state "breach of the terms and conditions").
    3) Further to 2) above, if this line of claim was brought up in the evidence pack or in court would I have grounds to say that I've been unfairly disadvantaged by inadequate particulars?
    4) Are there any extra costs that I could be hit with after the hearing?
    5) If I wanted to hire someone as a McKenzie friend would I need to declare this to the court in advance?

    Many thanks, as always, for your ongoing expertise
    F

  16. #41
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    Default Re: Parking Control Management UK Gladstones Court Claim

    1. A skeleton argument should begin preparation from the minute the claim form arrives, usually in your mind until the later stages when you'd start constructing in writing. However it shouldn't be submitted until after you've seen their evidence unless they are hopelessly late.

    2. Well it would depend on the facts to be honest. There has to be offer, consideration and acceptance both ways.

    3. Yes but if in evidence we'd use skeleton argument and witness statement to counter.

    4. Costs are limited in small claims. As long as you do as the court says, follow the rules and don't be an utter arse it'd be unusual to have more than claimed to pay. Perhaps in some cases some travel costs but it's usually local agents on a fixed fee. CPR 27.14 and Practice direction 27 details the costs rules.

    5. No. If i was paying i'd want a lay rep rather than a McK friend i think. The cost may be prohibitive and most times you won't get it back unless the claimants behave unreasonably.

    M1
    ********************************Signature********* ************************

    Private messages are off as all help on this site is on board.

    Please note i am now pretty much without access/time to help 5 days a week. Others will hopefully help you.


    I can only help with what you tell me. Post up information (other than names and addresses!).

    I NEVER enter any appeals or court documentation on your behalf. This is your responsibility.

    Upload images to your thread like this .Email [email protected] if you can't upload images/documents. She doesn't own a crystal ball as far as i'm aware so link to your thread or tell her how to find it !

    If you want to tell someone YOU were driving, go to confession.

    I,I,I,I,I,I should be avoided unless you are Jim Diamond.

  17. #42
    Fruitbat's Avatar

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    Default Re: Parking Control Management UK Gladstones Court Claim

    Hi M1,

    Just a quick update. We've both submitted DQs now and the court has transferred the case to my local court.

    It says in the letter that the case will be referred to a procedural judge to assign the case to the appropriate track. Hopefully this is the point at which the case is dismissed!

    BW
    F

  18. #43
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Unfortunately no. They are deciding the track and in your case it would be, most likely, the small claims track. This is where they are also working out the date.

  19. #44
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Thanks Ostell.

    Ah well... Wishful thinking!

    BW
    F

  20. #45
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Hi M1 and Ostell,

    So I've received a date for the hearing on the small claims track...

    I've received an order that the parties have to send "[a] written statements of the evidence of (a) themselves and (b) of any other witness whose evidence is relied on in support of the claim or the defence and [b] copies of any documents which they propose to rely on at the hearing."

    What actually is required here please? Is it just a witness statement or is a whole skeleton argument needed? If so then I would have absolutely no idea how to go about this...

    Many thanks
    F

  21. #46
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    Default Re: Parking Control Management UK Gladstones Court Claim

    @mystery1 @ostell

    Are you able to advise please? The deadline for the court's request is in just over a week (4 May).

    I've sort of written an evidence statement but should I be including things like the NTK and debt collection letters etc? I had basically ignored these having followed what seemed to be the prevailing evidence at the time.

    Many thanks
    F

  22. #47
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Well this is weird... I've received PCM's witness statement. They seem to be writing it as a cross between re-pleadings and a defence by making admissions and denials and quoting case law.

  23. #48
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    Default Re: Parking Control Management UK Gladstones Court Claim

    can you post up a copy?? or email it to me and I'll do it tomorrow morning??
    Debt is like any other trap, easy enough to get into, but hard enough to get out of.

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  24. #49
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    Default Re: Parking Control Management UK Gladstones Court Claim

    Hi Kati,

    That would be amazing - thank you so much. I will sanitise and email over very shortly.

    BW
    F

  25. #50
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    Default Re: Parking Control Management UK Gladstones Court Claim

    OK try for the life of me (for several hours) I cannot redact the witness statement and keep it in a manageable size to post or email. So I've copied and pasted the text below.

    Many thanks indeed for all of your help and for this forum.
    BW
    F


    I, Georgina Philpot, of [xxxxx] WILL SAY AS FOLLOWS:
    1. I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

    2. Exhibited to this Witness Statement at ‘GSL1’ are following documents which my Company 

    . i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as ‘the Relevant Land’) 

    . ii) The Sign (i.e. the Contract) 

    . iii) TheSitePlan 

    . iv) Notices 

    . v) Photographs of the incident 


    3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge;
    PCN NUMBER DATE OF CHARGE LOCATION DESCRIPTION
    PMxxxxxx
    PMxxxxxx
    5th August 2015
    7th May 2015
    Gallions Approach
    Gallions Approach
    Parked in restricted area
    Parked in restricted area



    The Defence
    4. The Defendant has not admitted being the driver at the time the parking charges were issued. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver. 


    5. In the alternative, if the Court is not able to infer that the Defendant was, in fact, the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 (‘the Act’) which states: 
“The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”

    6. The relevant Notices were sent to the Defendant in accordance with the Act and the Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these proceedings (which is required under the Act (paragraph 5(2)). 


    7. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. 


    8. My Company relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein. 


    9. The signs on the Relevant Land area clear and unambiguous, all vehicles must be parked fully within the confines of the marked bays and fully displaying a valid green visitor permit at all times. The Defendant was parked in a restricted area and by parking in this manner, the Defendant parked in contravention of the sign. The parking charge was therefore correctly issued on each occasion. 


    10. As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner. 


    11. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186
    1. “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.
    2. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.

    If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land.

    Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to enter into a contract does not, of course, mean that VCS necessarily did enter into a contract with the motorist to permit parking”


    12. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is not, therefore, excessive. 


    13. The recent decision of the Supreme Court also made it clear that the charges are not penal nor do they have to be reflective of the parking operator’s loss. Furthermore, they are entitled to be at a level that provides a deterrent effect. 


    14. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:- 

    i) The date of the charge;
    ii) The vehicle registration number;
    iii) The Parking Charge Notice number;
    iv) The amount outstanding;
    v) That is relates to parking charges; and
    vi) That it is debt.

    15. Further, prior to proceedings being issued the Defendant was sent notices in accordance with
the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charges which are the subject of this claim. 

    16. A Letter Before Claim was sent to the Defendant, which contained:-
    . i) The date of the charge; 

    . ii) The Parking Charge Notice Number; 

    . iii) The location of the charge; 

    . iv) The amount outstanding; 

    . v) The Claimant; and 

    . vi) That the balance relates to unpaid parking charge.
    If there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2)

    17. It is denied that the contract constitutes a ‘distance contract’ within the meaning of the Consumer Contracts Information, Cancellation and Additional Charge) Regulates 2013 (“the 2013 Regulations”). In particular:-
    i. It is denied that the Defendant was acting as ‘consumers’. The Defendant parked on the Land wholly or mainly for the purpose of their trade, business, craft or profession;
    ii. It is denied that the contract was concluded by ‘means of distance communication’.
    iii. The Claimant maintained a physical presence on the Land. 


    18. The Defendant has averred my Company requires planning permission under the Town and Country Planning (Control of Advertisements) Regulations 2007 for the signage to be displayed. My Company would dispute that on the basis that the Relevant Land is private land. 


    The Current Debt

    19. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred. 


    20. In view of the Defendant not paying the charge the matter was passed to my Company’s legal representatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

    STATEMENT OF TRUTH
    
I believe that the facts stated in this witness statement are true. Signed:
Print: Georgina Philpot
Dated: 27 April 2017

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